Designation: ______________________________________
Historical and Intellectual Background
Cesare Beccaria Bonesana, one of the leading exponents of the social contract theory in criminology, outlined his philosophy in his treatise Dei delitti e dellepene which became symbolic of the Italian Enlightenment in the renaissance years that engulfed the European scene. His views on crime and punishment boasted of novel elements and were primarily centered on providing speedy justice with the penal measures being proportional to the delinquent act. Beccaria’s works were considered to be a protest against the law enforcement torture used to extract confession from the accused individuals. Beccaria’s views not only represented a turning point in shaping jurisprudential aspects of the study of crimes and punishment but also have considerable influence in molding the line of thinking of a plethora of jurists, creating the platform for a sound academic discourse which eventually enriched the subject matter to a significant level. His liberal ideals were a breath of fresh air in a legal scene dominated extensively by punitive outlook portrayed through stringent punishments such as death penalty for offenders committing heinous crimes. (Peters 2015)
Beccaria’s profound impact on other schools of thought is evidenced in the way his views influenced Blackstone’s concept of “moral arithmetic” and the utilitarian way of thinking. He vehemently opposed the brutal nature of punishment meted out to offenders committing crimes with higher gravity. His debate with Bentham was naturally concluded in favor of less rigorous punishment aligned to the nature of crime and speedier justice for the aggrieved which went on to become the touchstone of the philosophy of natural justice and due process in several legal systems across the world. (Wolfgang 1996)
Beccaria found himself at loggerheads with the school of thought developed by Thomas Hobbes’ “Leviathan.” He disagreed with the point of view that liberty had to be sacrificed in entirety in favor of the ruling authority. Barring the minuscule portion ceded for security, each individual should retain his personal freedom and liberty. Any freedom earned through combat, he opined, was useless by virtue of uncertainty in retention. He did not agree with Hobbes’ pedantic notion that the nature’s state of war rendered all types of freedom contingent. (Pauley 1994)
Beccaria pioneered the concept of state legitimacy being derived from the power to punish for individual indiscretions. In contrast to the earlier views based on moral and religious sentiments, the theory represented a novel and unique way of determining political obligations. He opined that the social contract between the State and its subjects was responsible for imposing penal sanctions and it was a price payable for trying to snatch back the freedom ceded to the State for the purpose of ensuring safety and security and maintain law and order. Beccaria further states that the social contract is instrumental in defining the contours and limits of justifiable punishment which could be ordered by the State for criminal activities of its subjects. So, his proposed system arrived with inbuilt check and balance mechanisms to cater to the interests of the ruler as well as the ruled.(Pauley 1994)
Beccaria was a firm believer in maximizing social welfare for the general public. His concept of punitive powers of the state was aimed at ensuring greater happiness for the greatest number. The twin pillars of pleasure and pain which subsequently went on to lay the foundation for utilitarianism were the two metrics proposed by Beccaria while outlining his idea of political obligation. He opined that any punishment which failed to satisfy the social welfare criterion had to be considered as promoting tyranny in a State. (Bessler 2009)
Beccaria strongly believed that punishments should be proportional to the gravity of the crime. He advocated that more severe a punishment was, more likely it was that the offender would repeat the crime in foreseeable future. Punishment, therefore, had to be exercised judiciously by the administrators with the primary aim of creating deterrence for a man and not consigning him to lifelong misery and suffering. Beccaria's views on punishment were instrumental in shaping the deterrence theory of criminal justice in the years to follow.(Wolfgang 1996)
Value of Theory in our Understanding of Criminal Law
Making a direct comparison of the entitlements of the convicted in France to rest of the world, Beccaria indicated that the criminal law of Rome as a procedural law required to be emulated. He had observed that the proof was examined in full public view with the accused remaining present, possessing the power to cross examine or hire a counsel. This process was transparent and stood on higher moral ground exuding the magnanimity of the Roman system. (Appleman 2012)
This point is significant for a plethora of factors. Firstly, and most evidently, it puts emphasis on the deployment of a legal representative during the trial, an issue that the law makers amidst the colonial rulers could have taken into consideration while ascertaining the regulations of criminal procedural law in the modern set up.(Appleman 2012)
Significant in the same measure, however, is the debate in which the deployment of legal representative is rooted. Beccaria combined the help of a legal representative with an additional important entitlement of the subjects: the right to examine the entire proof in the full public view. In marked contradistinction to the criminal law followed in the French Republic where everything is carried out ever so discreetly, Beccaria propounds the manner in which the Romans conducted their court hearings in front of the general public, enabling the public to see and judge for themselves. This made sure that the fairness of the process was an ever present element in the administration of justice, for the offender as well as the victim. Beccaria goes on to criticize the practice, common in both England and France, of allowing the assistance of counsel to the civil plaintiff but not to the criminally accused.(Appleman 2012)
Beccaria's emphasis on community entitlements in the sanction of a defending legal representative is substantiated by his continuous stress on the function of the society in the process of administering criminal justice. For instance, he passionately envisioned a hearing held before the eyes of the public, which he considered as highly crucial in fortifying entitlements of the community as a whole. All court hearings should be transparent and the best judicial ruling must rise above the passion of the decision maker. By stressing the significance of the mass sentiment in addition to the transparency of any court proceeding, Beccaria highlighted the significance of the public's participation in the administration of criminal justice. Similarly, Beccaria perceived a criminal act as a default done against the people which required to be penalized in full public view. This emphasis on the larger interest, instead of the personal interests, covered all facets of the developing criminal law, which also included the evolving right to legal representation.(Anderson & Pildes 1990)
A key component of the underlying reasoning for retributive justice is sentencing at par with the crime committed. Beccaria, John Bentham and several other philosophers took note ofthis tenet. The “just deserts” or “commensurate deserts” line of thought provides ample evidence to this point. Beccaria's extent of the gravity of the criminal act and harshness of the punishment meted out were supposed to be in proportion to each other. (Woolfgang 1996)
Additionally, punitive actions can or should ideally be conveyed in terms of being equivalent instead of being in the identical physical shape of the criminal act. For instance, we do not suggested injuries meted out by the administrative mechanism for criminals who have caused injury to but not murdered the deceased party. It shall not be futile to advocate this issue since it is instrumental in establishing the underlying reasoning for awarding capital punishment. If the person on the receiving end of the crime has been battered and then subject to treatment by a doctor and subsequently released, or is admitted into a hospital, the administration does not determine identical punitive measure for the criminal. The administration for the sake of justice simply cannot stab, fire, pelt acid, or attack individuals imprisoned due to such grave attacks. By this very logic, Beccaria surmises that the value of capital punishment in response to any graver forms of offence loses credibility in the eyes of law.(Woolfgang 1996)
Beccaria’s views on punishment were centered on the premise that proportionality in inflicting pain are obtained in kind, instead of exacting it physiologically. The single unit of pain in our open community is denying of personal freedom over a period of time, computed in terms of the days elapsed. Other ways of denial are already contained under this particular set. (Woolfgang 1996)
In the world of Beccaria, additional things can be explained regarding the drudgery of imprisonment. He saw death as an eliminator of all sufferings. It removes the fact of guilt, exasperation, dream-fulfillment discrepancies, wish for the unachieved and non-gettable objects, worries etc. By executing the offender, the administration denies itself of the operation of these self imposes penal sanctions and of those punitive measures obtained from the denial of basic individual freedom. Death clearly terminates all agony and the criminal ceases to be punished any more. (Binder2002)
Future Repercussions of Beccaria’s Philosophy in the Academic World
Beccaria's manner of perceiving criminal law molded the line of thinking of numerous contemporary penologists. Additionally, in a manner similar to his counterparts, Beccaria opined that it was a more feasible option to nip crimes in the bud rather than taking penal measures. To materialize that preventive mechanism, Beccaria states that legislative enactments required being lucid and boast of clarity instead of leaning towards one particular group over the other. Mostly though there should be a rekindling of the humanitarian heart which will silence the ill effects of ignorance. That authority capitulates when not equipped with the sufficient strength of reason. (Pauley 1994)
With this theoretical backdrop, we can proceed to analyze the punishment for the offence of rape under the US legal system. The state of Oklahoma under § 21-1114 prescribes 5 years in prison to death for the offense of sexual intercourse against consent of an under-14 person. As clearly seen, for cases of extreme gravity, the law imposes death penalty for first degree rape. However, if we apply Beccaria's reasoning to justify such a stringent punishment, even for all the gravity that is inherent in every sexual offense, the punishment fails to address the deeply embedded factors in the life of the accused which ultimately leads him or her to commit a heinous offense. A proportional punishment for a sex offender can never be to deprive him of his or her life but must strive to address the emotional quotient of the accused. True punishment to a person convicted of rape must pave the path for inner realization of the nature and consequences of the crime, with the import of the heinous deed being allowed to sink in with the passing of every second. How can this aim be achieved in one swift motion of execution which in a way will release the psychological pressure without driving home the message of reform at a community level. Due to the additional gravity of the crime, it becomes all the more imperative that the accused undergoes intensive correction institutionally which will not only have a positive bearing on his personal disposition but spread an encouraging message at the societal level ensuring prompt improvement in decriminalization community wide. Not surprisingly, House Bill 1117 and Senate Bill 112 in recent months are aiming at relaxing the credits earned for good behavior even for serial offenders to facilitate a swifter release into the community mainstream. The bills would do Beccaria's rationale no harm if they see the light of the day.
Beccaria arrives at proximity to a situation that several contemporary reformative thinkers adopt that an offender is not to be held accountable for the heinous nature of his or her actions. Stringent penal sanction itself is mostly likely to responsible since it predisposes individuals to perform the very mistake it is equipped to bar. That was probably why Beccaria felt that the nations and era most infamous for stringent nature of punishment have invariably been the ones in which the most gory and beastly actions were performed, for the identical ethos of fierce law making that controlled the powers of the law makers also dominated over the killers. In his zest to have torture and death penalty cancelled, Beccaria states abjectly heinous and poorer by virtue of being spread by the administrators and enforcers. He surmises that a grave offense, performed by an individual should not attract since he has become immune by the harsh treatment of the community. (Binder 2002)
Policy Implications & Concluding Remarks
The primary criterion of a utilitarian policy formulation is data regarding societal circumstances and their impact on the well being of the community. Such data may be collected by administrative officers, following enactment of laws by law commissions and courts, or by academicians, reporters, and publishers. However, if a law is to be scrutinized by its anticipated input to the welfare of the masses, it should be constructed in context of data regarding our community. Once incorporated, the law should be reexamined contingent on its real impact. Another vital parameter of framing of policies in the utilitarian context is the logical and unbiased examination of the data collected. This mandates a particular type of wordings for policy examination. Such a choice of words must be devoid of passion and values. A utilitarian would assume that values would eventually vary across individuals and that there was little purpose in discussing them. (Singer 1982)
Reformers are generally keen on dislodging contemporary legislators for drawing advantage from an existing measure. The significance of a law needs to be evident to the general masses for systematic evaluation, offering of opinion and conducting of votes to arrive at a consensus. The impact of the laws also must be evident for the subjects for an effective understanding of the pros and cons. Last but not the lease, it should be evident to the administrators responsible for implementation, for doing away with any element of discretion creeping in. If the import of the legislative enactment is there for the commoners to see, it must operate likewise for officers enforcing it helping the system get rid of unwarranted political arbitrariness. Thus, at a policy level, for clarity and accessibility in the social contract context, the lacuna, futile repetitions and clashes will need to be brought to the forefront and done away with.
References
Peters, C.J. (2015). The Birth of American Law: An Italian Philosopher and the American Revolution by John D. Bessler Carolina Academic Press (2014), Champion, 62, 63.
Wolfgang, M.E. (1996). We do not Deserve to Kill, Thomas M. Cooley Law Review, 977, 981, 984.
Pauley, M.A. (1994). The Jurisprudence of Crime and Punishment from Plato to Hegel, American Journal of Jurisprudence, 97, 104, 109.
Bessler, J.D. (2009). Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, and the Abolition Movement, American Journal of Jurisprudence, 97, 104, 109.
Hong, T.Y. (1998). Televised Executions and Restoring Accountability to the Death Penalty Debate, Columbia Human Rights Law Review, 787, 801, 811.
Appleman, L.I. (2012). The Community Right to Counsel, Berkeley Journal of Criminal Law, 1, 9, 17.
Binder, G. (2002). Punishment Theory: Moral or Political?, Buffalo Criminal Law Review, 321, 333, 341.
Singer, J.W. (1982). The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, Wisconsin Law Review, 975, 985, 986.
Anderson, E.S. &Pildes, R.H.(1990). Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, Columbia Law Review, 2121, 2126, 2130.
